The appellant sued to recover rental overcharges of $475 with treble damages. The jury returned a verdict for single damages and upon appeal the Appellate Term reversed the judgment and dismissed the complaint.
The appellant occupied an apartment on the premises of the respondent from September 15,1950, to September 30, 1951, pursuant to a written lease which provided that the apartment was to be occupied as “ living quarters and executive offices ”. The stipulated rent was $110 per month. Some five months previous to September, 1950, a commercial rent of $125 a month had been fixed pursuant to a commercial arbitration with a prior tenant and confirmed by an order of the Supreme Court. The registered maximum residential rent was $62.50 a month.
The trial court submitted to the jury the factual issue of whether the apartment was in fact intended and actually used for residential or commercial purposes. The respondent took no exceptions to the charge and submitted no requests. Implicit in the verdict of the jury was a finding that the intended and actual use of the apartment was for residential purposes.
The fixing of a commercial rent pursuant to law does not deprive a subsequent residential tenant of the protection of the residential rent control and the maximum rent established' thereby. (Cf. Powell v. Park Lex. Realty Corp., 280 App. Div. 136, affd. 304 N. Y. 960.)
The order of the Appellate Term should be reversed and the judgment of the Municipal Court reinstated, with costs to appellant and an allowance to the appellant of an additional counsel fee in the sum of $125.
Peck, P. J., Dore, Callahan, Breitel and Bastow, JJ., concur.
Determination unanimously reversed in accordance with the opinion herein. Settle order on notice.